562 F.

2d 198

Thomas PULVER, Petitioner-Appellant,

v.
John CUNNINGHAM, Warden, New York City Correctional
Institution for Men, Respondent-Appellee.
No. 618, Docket 76-2133.

United States Court of Appeals,

Second Circuit.
Argued March 1, 1977.
Decided Sept. 16, 1977.

Lawrence W. Kessler, Hofstra Law School, Hempstead, N. Y., for

petitioner-appellant.
David L. Birch, Asst. Atty. Gen., New York City (Louis J. Lefkowitz,
Atty. Gen., State of New York, Samuel A. Hirshowitz, First Asst. Atty.
Gen., New York City, of counsel), for respondent-appellee.
Before MULLIGAN and OAKES, Circuit Judges, and BRYAN, District
Judge.*
MULLIGAN, Circuit Judge:

This is an appeal from an order of the United States District Court for the
Southern District of New York, Hon. Robert J. Ward, denying appellant's
petition for a writ of habeas corpus. On May 19, 1971, appellant was convicted
of possession of stolen property in the second degree in the Supreme Court of
the State of New York, New York County. The judgment of conviction was
affirmed without opinion by the Appellate Division on September 25, 1973, 42
A.D.2d 927, 347 N.Y.S.2d 941 (1st Dept. 1973), and the New York Court of
Appeals denied permission to appeal on December 18, 1973. Appellant then
filed this petition in the Southern District on June 25, 1974, alleging that
evidence admitted at his state court trial had been obtained in violation of his
Fourth Amendment rights. In his opinion denying the petition, 419 F.Supp.
1221 (S.D.N.Y.1976), Judge Ward found appellant's claim barred by the
Supreme Court's recent opinion in Stone v. Powell, 428 U.S. 465, 96 S.Ct.

3037, 49 L.Ed.2d 1067 (1976). The order appealed from is affirmed.

2

On March 9, 1970, Detectives Jacob and Schumacher of the Safe-Loft and

Truck Squad observed appellant Pulver and Eugene Bonica drive in a
Volkswagen bus to an apartment building at 302 Mott Street in New York City.
Pulver and Bonica removed three cartons from the bus and carried them into
the building. The detectives were apparently aware that appellant and his
companion occupied apartment 39 on the sixth floor, and they proceeded to that
location. The differing versions as to what subsequently transpired create the
issue before us on this appeal.

At a pre-trial suppression hearing the two detectives testified that they went to
apartment 39, knocked on the door, and stated that they were police officers.
Appellant opened the door partially and then shut it. Detective Schumacher
remained at the door on which he continued to knock while Jacob went down
the hall to a window and out onto the fire escape. From this position Jacob saw
three boxes thrown from appellant's window. He retrieved the discarded boxes
and brought them back upstairs. The detectives were then admitted to the
apartment where they placed Pulver and Bonica under arrest. An inspection of
the cartons revealed that they contained stolen adding machines. Based on this
testimony the court concluded that the cartons had been intentionally
abandoned and suppression was denied.

Immediately before trial a further hearing was held pursuant to People v.

Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965) to determine
the voluntariness of an admission made by appellant to Detective Jacob. Jacob
testified that after placing Pulver under arrest, he gave him his Miranda
warnings which appellant stated he understood. In response to a question as to
why he had thrown the machines out of the window, Pulver replied, "They are
the only things here that have serial numbers." At the conclusion of the hearing
the court found that appellant had waived his constitutional rights and held the
statement admissible.

At trial, a slightly different version of the circumstances surrounding the arrest

emerged which appellant contends required the exclusion of both the tangible
evidence and his admission. Detective Schumacher testified that when Pulver
started to close the door, "I shoved the door back at him trying to get in. And he
succeeded succeeded in slamming the door shut." With this new element of
attempted forcible entry developed at trial, counsel for appellant again moved
to suppress the evidence. The motion was denied by the trial judge. Appellant's
position in the district court was that the attempted forcible entry occurred at a
time when the detectives lacked probable cause and therefore was illegal. This

illegality allegedly tainted both the defenestration of the cartons and Pulver's
admission to Jacob, rendering his conviction invalid.
6

Faced with these Fourth Amendment claims by a state court defendant in a

habeas corpus proceeding, Judge Ward recognized the restrictive effect of
Stone v. Powell, supra, on the scope of federal review:

7
Even
if this Court were to hold that petitioner's Fourth Amendment rights were
violated by the police officers' conduct, the writ could not be granted unless
petitioner was also denied a full and fair opportunity to litigate his Fourth
Amendment claims in the state courts.
8

419 F.Supp. at 1223. Because of the failure to elicit this additional information
at the suppression hearing, the court concluded that it "would have no
difficulty concluding that the state suppression hearing failed to adduce the
material facts." Id. at 1224. The opportunity to litigate test of Stone was
interpreted by the district court to include corrective action available through
the state appellate process on direct review of the judgment of conviction.
Judge Ward found that the argument pressed in the state trial court had been
presented to the Appellate Division, and the district court concluded that the
state appellate process was adequate to correct trial court errors. Since the
material facts were presented to the state appellate courts and no deficiency was
demonstrated in their consideration of the issue, the district court concluded
that the appellant had had the opportunity to litigate his Fourth Amendment
claim guaranteed him by Stone. On that basis the petition was dismissed.

In Stone v. Powell, supra, the Supreme Court, upon re-examination of the scope
of federal habeas corpus relief available to state prisoners alleging violations of
Fourth Amendment rights, held that

10
where
the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, a state prisoner may not be granted federal habeas corpus relief
on the ground that evidence obtained in an unconstitutional search or seizure was
introduced at his trial.
11

Id., 428 U.S. at 494, 96 S.Ct. at. 3052 (footnotes omitted). This court on several
occasions has had the opportunity to interpret and apply Stone. E. g., LiPuma v.
Commissioner, 560 F.2d 84 (2d Cir. 1977); Simmons v. Clemente, 552 F.2d 65
(2d Cir. 1977); Kahn v. Flood, 550 F.2d 784 (2d Cir. 1977). Plenary
consideration to the implications of that decision was recently given in Gates v.
Henderson, --- F.2d ---- (2d Cir. 1977) (en banc).

12

In Gates, this court affirmed the district court's dismissal of a petition for a writ
of habeas corpus. Gates had been convicted of murder in the first degree,
largely on the basis of the identity of his fingerprints and palmprints which
matched those found at the murder scene. After unsuccessful direct and
collateral proceedings in the state courts, Gates filed a habeas corpus petition in
the federal district court. He alleged that the arrest which preceded the taking of
his prints lacked probable cause, thereby rendering that taking violative of the
Fourth and Fourteenth Amendments. This objection had not been raised either
prior to or at his trial as required by a state statute. Finding that the state had
provided the procedure by which Gates could have asserted his challenge, this
court concluded that he had had an opportunity for full and fair litigation of his
Fourth Amendment claim. Thus even though defendant's claim had never been
considered on its merits because of his procedural default, Stone was found to
bar his resort to federal court.

13

We find the same opportunity to litigate present in this case at the trial level. A
suppression hearing was conducted before trial to determine the circumstances
surrounding the acquisition by the police of the cartons in question. A Huntley
hearing was also held to determine the voluntariness of the admission, and the
method of police entry into the apartment was raised by the defense. At neither
proceeding, however, was the theory now urged developed. We are not dealing
with relevant information known only to the prosecution. The means by which
the police got into the apartment were equally known to the defense. Appellant
clearly had the opportunity prior to the commencement of trial, either by direct
testimony or by cross-examination of the state's witnesses, to elicit the facts
which would support his legal theory. Nor would he have satisfied any of the
exceptions to the rule requiring the making of a suppression motion at that
time. N.Y.Code Crim.Proc. 813-d, now codified at N.Y.Crim.Proc.Law
710.40. Here then, as in Gates, the state had provided the opportunity to litigate
appellant's Fourth Amendment claim at the trial level. Stone bars the
consideration of that claim by a federal court even though appellant failed to
develop it at the suppression hearing. We therefore affirm the judgment below.
OAKES, Circuit Judge (concurring):

14

I concur in the result.

Hon. Frederick vanPelt Bryan, Southern District of New York, sitting by

designation